Sharmain Daisy Clarke v South Eastern Sydney Local Health District

[2018] NSWCA 202

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Sharmain Daisy Clarke v South Eastern Sydney Local Health District [2018] NSWCA 202
Hearing dates:	3 September 2018
Date of orders:	03 September 2018
Decision date:	03 September 2018
Before:	White JA
Decision:	Application dismissed with costs
Catchwords:	PROCEDURE – request for referral to a barrister or solicitor on the Pro Bono Panel – Uniform Civil Procedure Rules (NSW) r 7.36 – where applicant has received pro bono assistance within the preceding three years – where no special reasons exist to provide referral – application dismissed with costs
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) rr 7.36, 14.28
Cases Cited:	Kelly v Mosman Municipal Council [2010] NSWCA 370 Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602
Category:	Procedural and other rulings
Parties:	Sharmain Daisy Clarke (applicant) South Eastern Sydney Local Health District (respondent)
Representation:	Counsel: Self-represented (Applicant) E Bluett (Respondent)   Solicitors: Hicksons Lawyers (Respondent)
File Number(s):	2018/241478
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2018] NSWSC 66 Date of Decision: 06 February 2018 Before: Adamson J File Number(s): 2017/101668

Judgment

1. HIS HONOUR: The applicant who represents herself seeks an order in the following terms:

"The plaintiff seeks an order requesting leave from this Honourable Court without prejudice to the defendant to be referred to a Pro Bono Solicitor or Barrister for the purposes of advice and representation in these proceedings."

2. The respondent neither consents to nor opposes the application. The application is made pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). That rule relevantly provides:

“7.36   Referral to a barrister or solicitor

(cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)

(1)     If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(2)     For the purposes of subrule (1), the court may take into account:

(a)     the means of the litigant, and

(b)     the capacity of the litigant to obtain legal assistance outside the scheme, and

(c)     the nature and complexity of the proceedings, and

(d)     any other matter that the court considers appropriate.

(2A)     The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.

...

(4)     If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.”

3. The applicant has filed a summons seeking leave to appeal from orders made by Adamson J on 6 February 2018 (Clarke v South East Sydney Local Health District [2018] NSWSC 66). Adamson J struck out a statement of claim filed by the applicant on 4 April 2017 pursuant to rr 14.28(1)(a) and 14.28(1)(b). Her Honour refused the applicant leave to file a proposed amended statement of claim, dismissed the whole of the proceedings pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules and made costs orders.

4. The proceeding commenced in the Supreme Court that was thus summarily dismissed was the latest in a number of proceedings that the applicant had brought. She had brought earlier proceedings in the Industrial Relations Commission claiming unfair dismissal. She brought proceedings in the NSW Civil and Administrative Tribunal (after referrals from the Australian Human Rights Commission and the Anti-Discrimination Board) and made various other claims to which Adamson J referred in her reasons for judgment.

5. The correctness of the reasons for judgment of Adamson J are not directly before me on this application, but it is relevant to take into account whether or not the application for leave to appeal has any prima facie prospects of success. A referral under r 7.36 can be made only where the Court is satisfied that it is in the interests of the administration of justice for a self-represented litigant to be referred for pro bono assistance as Campbell JA said in Kelly v Mosman Municipal Council [2010] NSWCA 370 at [19]:

"Any orders for pro bono legal assistance need to be made bearing in mind that the resources of the Pro Bono Panel are limited, that the lawyers whose names appear on the Pro Bono Panel provide their services voluntarily, and that the Court should ask them to give up their time and exercise their skill only in circumstances where there is an appropriate reason, for the overall administration of justice, to make that request."

6. To similar effect, Brereton J (as his Honour then was) in Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 at [9] said that:

"Whilst a referral does not indicate that the Court has formed an opinion on the merits of a litigant’s case, the Court should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit."

His Honour went on to add:

"That is not to say that a referral should never be made in a case apparently lacking merit: for example, it may well be appropriate to grant a certificate, for the limited purpose of obtaining advice, in a case without legal merit, where there is some prospect that the advice will assist the litigant to understand the defects in the case, so that unnecessary litigation may be avoided."

7. I enquired of the applicant what her position would be if a referral for advice were made and the solicitor or barrister on the Pro Bono Panel advised her that she had no real prospects of success on the application for leave to appeal, or advised that the primary judge was right for the reasons that the primary judge gave. My understanding of the applicant's response was that, perhaps reluctantly, if she were advised that she had no real prospects of a successful appeal she would act on that advice, provided a satisfactory explanation for such a view was given.

8. I am far from satisfied that the applicant would accept any such advice or would be satisfied with any reasons that might be given if the advice were adverse to her interests. She has not sought to demonstrate that the reasons of Adamson J were incorrect for any specific reason but she does say that a serious injustice has been done to her. I am told that there are other proceedings pending in the District Court and also there are proceedings that she has commenced which are pending in the Federal Circuit Court.

9. Of particular significance is that within the preceding period of three years, the District Court referred the applicant for assistance under r 7.36 in respect of proceedings then pending in the District Court. By r 7.36(2A), the Court cannot make a further referral unless satisfied that there are special reasons justifying a further referral. It is true that the referral that had been previously made would have related to issues that were then pending in proceedings in the District Court. In particular, so I was informed, a claim for defamation and a claim in respect of an alleged assault. That is not to say that advice could not have been sought in respect of other claims which are apparently the subject of the proposed amended statement of claim for which Adamson J refused leave to file.

10. I am not satisfied that there is a special reason justifying a further referral of the applicant for pro bono assistance. I do not think that the resources of the Pro Bono Panel would be properly deployed in the way the applicant has sought. I dismiss the claim for relief in para 1 of the notice of motion filed on 28 August 2018. The applicant does not press the claim for relief in para 2. I order that the notice of motion be dismissed.

11. The applicant has foreshadowed seeking an order joining the Nursing and Midwifery Council of New South Wales as a party to her application for leave to appeal. She can take such steps in that respect as she considers to be appropriate. Prima facie those people or entities that were parties to the application before Adamson J would be the proper parties to the application for leave to appeal.

[Parties address on costs.]

12. Costs of the notice of motion should follow the event. The respondent neither consented to nor opposed the application that the applicant be referred for pro bono legal assistance, but was entitled to be present at least to deal with the claim for relief in para 2 of the notice of motion which was not pressed. I am told that no prior notice had been given of the applicant's intention not to press that claim for relief. I order that the applicant pay the respondent's costs of the notice of motion filed on 28 August 2018.

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Decision last updated: 13 September 2018